Citation NR: 9718716
Decision Date: 05/30/97 Archive Date: 06/04/97
DOCKET NO. 96-08 721 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina
THE ISSUE
Entitlement to service connection for the cause of the
veteran's death.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Neil T. Werner, Associate Counsel
INTRODUCTION
The veteran served on active duty from October 1943 to
February 1945. He died on December [redacted] , 1994. The appellant
is the veteran’s widow. Appellant has been represented
throughout her appeal by The American Legion.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from a March 1995 rating decision of the
Winston-Salem, North Carolina, Regional Office (RO) of the
Department of Veterans Affairs (VA) which denied entitlement
to service connection for the cause of the veteran's death.
The notice of disagreement was received in October 1995. The
statement of the case was issued in January 1996.
The document purporting to be the appellant’s substantive
appeal displays date received stamps by the RO in both
February 1996 and April 1996. It appears that the document
was first executed and submitted by the representative, and
the same document was thereafter signed by the appellant at a
later date. The Board notes that only if the document was
received by the RO in February 1996 would the appellant’s
appeal be timely. The Board finds that, because of its
inability to ascertain from the document the actual date on
which the RO received the properly executed appeal, it will
find that the appellant filed a timely substantive appeal in
February 1996.
REMAND
The appellant contends that service connection for the cause
of the veteran's death is warranted. She asserts that her
husband’s service connected traumatic partial left leg
amputation in combat, during World War II, led to depression
and anxiety which manifested itself through the veteran’s
suffering from headaches, a nervous stomach, a colostomy for
an ulcerated colitis and eventually in the heart attack that
killed him.
The certificate of death reflects that the veteran died on
December [redacted] , 1994, while hospitalized at Alleghany Memorial.
The immediate cause of death was listed as anteroseptal
myocardial infarction. The certificate of death indicates
that an autopsy was not performed. During the veteran's
lifetime service connection was established for amputation of
the left leg, seven inches below the knee, secondary to a
land mine explosion in a rating decision dated in February
1945, and for the residuals of a shell fragment wound to the
left thigh in a rating decision dated in September 1954.
The governing legal criteria provide that service connection
for the cause of the veteran's death is appropriate when, by
the exercise of sound judgment without recourse to
speculation, it is determined that a disability incurred in
or aggravated in service caused or contributed substantially
or materially to the veteran's death. 38 U.S.C.A. § 1310
(West 1991); 38 C.F.R. § 3.312 (1996).
In reviewing the record the Board notes that a Gale J.
Ashley, M.D., filed with the RO two letters, dated in
December 1994 and August 1995, alleging, in substance, that
she was the veteran’s physician for many years and that his
service connected partial left leg amputation and shrapnel
wound led to a nervous disorder and depression which caused
the heart attack which ultimately killed the veteran.
Similarly, in a letter dated in May 1995, Dr. Don Temple also
asserted, in substance, that the veteran’s partial left leg
amputation led to a nervous disorder which caused the heart
attack which killed him.
A review of the appellant’s claims file fails to disclose any
treatment records of the veteran by Dr. Ashley, Dr. Temple or
any other health care provider, except for a discharge
summary dated in December 1973, covering the course of the
veteran’s treatment for acute gastroenteritis and a possible
ulcerative colitis, and a December 1980 letter from Dr.
Ashley stating that the veteran suffered from nervousness and
symptoms of depression.
38 C.F.R. § 19.9 (1996) states that:
When, during the course of review, it is
determined that further evidence or
clarification of the evidence or
correction of a procedural defect is
essential for a proper appellate
decision, a Member or panel of Members of
the Board shall remand the case to the
agency of original jurisdiction,
specifying the action to be undertaken.
The Board finds that, given Dr. Ashley and Dr. Temple’s
assertions, that the veteran’s service connected partial left
leg amputation led to stress which resulted in the heart
attack that killed the veteran, appellate adjudication of the
claim cannot go forward without first obtaining all of the
relevant treatment records of the veteran. 38 C.F.R. § 19.9
(1996).
Additionally, in reviewing the record, the Board notes that
the only terminal hospital records obtained by the RO was a
two page record entitled cardiopulmonary resuscitation record
from Alleghany County Memorial Hospital, dated in December
1994. The Board also finds that before appellate
adjudication of the appellant’s claim can go forward the RO
must also secure from Alleghany County Memorial Hospital any
additional terminal hospital records that are not on file.
Murincsak v. Derwinski, 2 Vet.App. 363 (1992).
In view of the foregoing, this case is REMANDED to the RO for
the following action:
1. The RO should contact the appellant
and have her identify (names, addresses
and dates) any sources of VA or non-VA
treatment or examination of the veteran
since service. The RO should then secure
copies of all identified records,
including all records pertaining to the
veteran’s treatment by Gale J. Ashley,
M.D., Dr. Don Temple, and Alleghany
County Memorial Hospital and associate
them with the claims folder.
2. The RO should then review the claim
for service connection for the cause of
the veteran’s death. In the event that
the determination is adverse to the
appellant, she and her representative
should be furnished a supplemental
statement of the case and be given the
opportunity to respond thereto.
Thereafter, the claims folder should be returned to this
Board for further appellate review. No action is required of
the appellant until she receives further notice. The purpose
of this REMAND is to ensure due process. The Board intimates
no opinion, either legal or factual, as to the ultimate
disposition of the appeal of the remanded issue.
RICHARD D. TURANO
Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
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